U.K. Trial Court: Lying About Vasectomy Negates Consent to Sex

European courts are starting to recognize sexual fraud where U.S. courts generally haven't

|The Volokh Conspiracy |

Jason Lawrance is many online dating users' worst nightmare. The British father-of-three met a number of women on Match.com that he went on to sexually attack, for which he received a life sentence in 2016 (which actually means he will spend at least 12.5 years in prison). In addition to being punished for his violent crimes, the serial sexual predator also got convicted for a more unique reason: he lied to a woman about having had a vasectomy before having sex with her, which resulted in her becoming pregnant and having an abortion. According to the BBC,

Lawrance and the woman were texting each other before they met and he told her he had undergone "the snip" in a discussion about contraception.

The woman checked with him in person when they met up for sex, and Lawrance again said he had undergone a vasectomy.

They had sex twice and Lawrance left in the middle of the night.

He later texted her saying: "I have a confession. I'm still fertile. Sorry. xxx"

Lawrance's text messages were used as evidence he had deceived the woman, and that he knew the woman would not have consented to sex without contraception.

He was charged with two counts of rape because he had sex with the woman twice.

The prosecutor convinced the jury that consent obtained through deception is not true consent, in what is believed to be a legal first in the United Kingdom. While Lawrance has appealed this part of his conviction (as opposed to the ones about the physical sexual attacks), the decision strikes me as sensible. Sexual fraud is a serious societal problem that has become even more prevalent in the online dating era, and I have proposed a tort-type–as opposed to criminal–legal remedy to address the issue (the WaPo op-ed version of my argument can be found here).

The United States has been quite reluctant to respond to sexual fraud in modern history even in the tort setting. The 1990 New Jersey case of C.A.M. v. R.A.W. dealt with a vasectomy-related lie that resulted in the birth of a child. Essentially questioning the existence of an actionable form of harm, the majority decision of the Superior Court, Appellate Division, stated:

At the time plaintiff first became aware she was pregnant, she had the legal right to safely abort the fetus. Thus a claim might be made that plaintiff should have mitigated her damages. We recognize there are a variety of reasons why a woman may decide not to undergo an abortion. However, we question whether a plaintiff in a tort action for the wrongful birth of a normal, healthy child may decide to have the child and then look to defendant for damages of the type sought by plaintiff in this case.

The dissent criticized the majority for using privacy as a shield from liability, and for bringing up mitigation when that issue had not been "raised, briefed, or argued." Lawsuits against women who lied about their use of birth control and became pregnant against men's desires have fared no better.

There have been occasional exceptions to courts' general unwillingness to intervene in this area, such as in the 1983 California case of Barbara A. v. John G., where the defendant lied when he said he didn't want to use a condom because "[he] can't possibly get anyone pregnant", which he knew to be a lie. The plaintiff believed that the defendant was sterile as the result of a vasectomy or for some other reason, had unprotected sex with him, and suffered an ectopic pregnancy. She had to have a Fallopian tube removed in life-saving surgery and became sterile as a result.

The Court of Appeal reversed the trial court's judgment on the pleadings that had dismissed the plaintiff's claims of battery and deceit. The Court of Appeal distinguished the case from ones involving "wrongful birth", stating that the public policy reasons against those cases did not exist here; instead, the court found stronger analogies in cases that allowed actions against defendants who concealed their STD status. The court specified that "the constitutional right to privacy normally shields sexual relations from judicial scrutiny, it does not do so where the right to privacy is used as a shield from liability at the expense of the other party", which is language on which the C.A.M. v. R.A.W. case discussed above later relied.

It would be interesting to know how U.S. courts today would handle a case where a plaintiff has an abortion (so no "wrongful birth" is present, and "mitigation" can be said to have occurred) and there is no element of other physical harm present such as with an ectopic pregnancy. In other words, would courts be willing to recognize pregnancy itself (and/or any physical or emotional suffering resulting from an abortion) as a harm sufficient for a tort case to proceed? In my view–even if one buys into the questionable "wrongful birth" rationale in situations of completed pregnancies–they should. Canadian courts seem to agree with me on that particular point, though they continue to have their own struggles with the concept of sexual fraud; this includes the (in my eyes, problematic) failure to recognize the emotional, dignitary, and financial harms to men who became fathers after women lied about being on birth control.

Along related lines, Alexandra Brodsky deplored in a fairly recent piece the lack of remedies in U.S. law for nonconsensual condom removal, a practice also known as "stealthing". This is another area where European jurisdictions are starting to become more willing to intervene. In 2017, a Swiss court handed down a 12-month (suspended) sentence for "defilement from rape" caused by stealthing in a case involving a Tinder date. Last year, a German court found a police officer guilty of sexual assault after he engaged in stealthing. Meanwhile, outside of Europe, an Australian court is set to decide a stealthing case that had a male victim. And Canadian courts have intervened against poking holes in condoms before sex, declaring such acts sexual assault. Let's hope that American courts catch up on the front of sexual fraud sooner rather than later and begin to protect victims better than so far.

NEXT: Three Cases Everyone Should Know from the Stone and Vinson Courts

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. I have never found arguments of “it works in that country” persuasive for what will work here. The argument of what is beneficial should stand on its own merits.

    In this case for me, it does stand on its own merits. It’s fraud and should be punished as such. Sadly, I fear unless it is criminally prosecuted it won’t amount to nearly as much punishment as would be proper. For rich and powerful men, if you can defeat their lawyers you’ll get paid. But what about the guy who has little money in the first place? How does one obtain blood from a turnip?

  2. I’m curious as to whether the same logic might apply if she said she was on birth control but wasn’t.

    1. It would appear so.

      “this includes the (in my eyes, problematic) failure to recognize the emotional, dignitary, and financial harms to men who became fathers after women lied about being on birth control.”

  3. I’d like to see it work the other way around before I call it success. Let me know when a woman gets convicted because she lied about being on the pill

    1. This is particularly a concern if the woman then refuses to have an abortion and then goes after the deceived father for child support.

  4. Equality in the area of reproduction demands women be held liable for lying about birth control and sexual fraud; and men having the right to terminate their parental rights on the same level as a woman.

    I don’t think such equality is socially, politically, or economically viable.

    1. A women needs a man like a fish needs a bicycle, or so I’m told. Surely the feminists are lining up now demanding gender neutral laws

  5. This case seems an outlier, so it’s kind of odd to demand parity.

    How often do you guys think women lie about being on birth control?

    You know what? Forget I asked. The MRA contingent on this blog is nontrivial.

    1. “How often do you guys think women lie about being on birth control? ”

      Depends. Is the guy an NBA player? Then I think it approaches 100%

    2. “How often do you guys think women lie about being on birth control?”

      Why don’t you tell us? And then tell us how that compares to how often men lie about having a vasectomy or fake wearing a condom.

    3. “How often do you guys think women lie about being on birth control?”

      Well, wikipedia says, with links to sources, that 8-30% of women do it. I don’t have access to the sources, and these types of studies are often bullshit, but there’s a starting point.

      1. Your link says between 8 and 30% of women report being the VICTIMS of it.

        1. TY. I was getting pretty confused.

        2. My bad. It said that this has happened to 10% of men. But the same caveat, in my experience these studies are usually bullshit.

    4. Let’s say it doesn’t happen that often.

      Shouldn’t there be a remedy when it does happen?

      I think the damages, on average, will tend to be higher when sexual fraud occurs against women, since they may have to go through a pregnancy. But there are damages in either case.

    5. This case seems an outlier, so it’s kind of odd to demand parity.

      What a strange sentiment: “Men don’t do this very often, so we shouldn’t punish women when they do it.”

      If the act is a tort then it demands resolution. Refusing to enforce the law because it would create unbiased outcomes seems like an unreasonable policy.

    6. ‘how often’ is rather irrelevant. Are you insinuating that men go around all the time lying about it and women never do there for there shouldn’t be any parity?

      How often do women commit murder compared to men? Should we not have parity in crimes either way (without getting into extenuating circumstances)?

      1. I’m just saying that if a dude does something weird, it’s an odd impulse to immediately demand that any women who do something weird be treated the same.

        1. “You know what? Forget I asked. The MRA contingent on this blog is nontrivial.”

          What do you think this contributed?

          1. It’s about the total package, my man.

            If you’re going to parse partial comments of mine…well, that says more about you than about me.

            1. “It’s about the total package, my man.”

              Bullshit.

              “If you’re going to parse partial comments of mine…well, that says more about you than about me.”

              No, this is just another example of you thinking it’s perfectly okay when you do it. That’s all on you.

    7. Like others, I don’t know. I do have a friend who was lied to about this and now has a kid, so maybe I’m biased. Or maybe he’s lying.

      But let’s accept that it does happen. The consequences are enormous. We have plenty of laws and protections to address things that are rare, but produce significant losses (terrorism/mass shootings, various crimes like arson, treason). Saying something is rare isn’t a reason to allow it to happen.

    8. I know of cases where a married woman has gone off birth control and deceived their husband into having a child she knew he did not want but she did. That sounds like spousal rape to me.

    9. “How often do you guys think women lie about being on birth control?”

      Maybe a little, maybe a lot. Maybe they think it’s a lie but are rather averse to wearing condoms, so they believe the transparent lie. The Pill does not always work (especially the “mini Pill”), and even when it would work, women are not always perfect about taking it.

      Ultimately, it seems exceedingly foolish to have unprotected sex with someone you barely know. Whether the issue is transmission of STDs, him lying about sterility, her lying about the Pill, or what-have-you, it seems that caution would be prudent. Perhaps that’s irrelevant to the court’s decision.

  6. What other sorts of fraud matter?
    “I love you”
    “I’ve only slept with 2 people”
    “I’m a fighter pilot”

    1. Yes, this is a slope best not started upon.

      1. Where is the slope?

        Don’t lie about your identity to extract something of value from someone else. How hard is that? Seems pretty basic to me.

        1. Criminalizing bedroom banter is the slope.

          It won’t stop with lying about STDs or birth control because there is no limiting factor. Inducing sex with a lie negates consent.

          1. It seems to me that a position that says this should never be actionable and also says that a woman shouldn’t have access to a legal abortion is evil and misogynistic.

            Because it basically says guys can lie to the woman to get her pregnant, and then she’s stuck being a slave-womb to the government for the ensuing nine months.

            1. “Because it basically says guys can lie to the woman to get her pregnant”

              That’s not how you get a woman pregnant.

            2. “and then she’s stuck being a slave-womb to the government for the ensuing nine months.”

              That’s a rather rude way to talk about pregnant women.

              1. Theo, a woman who is impregnated through trickery, and then forced by pro-life zealots to carry that unwanted fetus around for months, is essentially being enslaved to function as a womb.

                This is an example of the sort of case that shows the need for legal abortion. Guys do stuff like this to women, and women should not have their bodies conscripted as a result of it.

                1. At what point during gestation does it become okay to enslave a woman’s womb? Because as far as I’m aware, every state in the union imposes restrictions on non-medically required abortions after a certain point.

            3. Why do you think the concept won’t be used against women also?

              Lying about a vasectomy is very likely to be a rare occurrence. Pretty sure lying about having a condom on is discoverable.

              If it could be limited to just lying about STDs or a vasectomy or other contraceptive use, maybe it would be ok.

              Pass a statute to that effect then, don’t try to shoe horn “sex fraud” into consent in the criminal law. Because it won’t stop with lying about STDs or a vasectomy or other contraceptive use, if you think otherwise you are a fool.

    2. All other things being equal the consequences of sleeping with someone who lied about those things are the same as with someone who was truthful

      The same cannot be said for lying about a vasectomy, being on birth control, or having an STD

      1. “All other things being equal the consequences of sleeping with someone who lied about those things are the same as with someone who was truthful”

        But all other things aren’t equal. If it’s the lie that leads to the sex, the consequence of the lie is the sex.

        “The same cannot be said for lying about a vasectomy, being on birth control”

        Leaving aside STDs, not everyone who has unprotected sex gets pregnant. Would you require a pregnancy to be able to make a sexual-fraud claim? That’s certainly an easy way to help solve the line-drawing problem.

        1. I’m not talking about the consequences of a lie I’m talking about the consequences of sex.

          Lets break it down further:
          Scenario 1: You meet someone in a bar, they lie and say they are a fighter pilot. You take them home and have sex. What are the possible outcomes?

          Scenario 2: You meet someone in a bar, they tell the truth that they are a cashier at a grocery store. You take them home and have sex. What are the possible outcomes?

          And for a control, Scenario 3: You meet someone in a bar, you don’t bother to ask what they do for a living. You take them home and have sex. What are the possible outcomes?

          All other things being equal, the outcomes are the same: For better or worse you had sex with a stranger. That’s where I’m imagining a line should be drawn, whether or not the lie is concealing a potential outcome of the encounter

          1. But the lie is what’s relevant, not the sex.

      2. The consequences are not the same. If someone chooses to sleep with someone who is a fighter pilot, maybe they think they are going to be passing on good genes to their children. But if the person is lying about that, they get the garbage genes of the liar.

        Having sexual relations with people is risky. A person ought to be able to rely on the other person to not lie about who they are before taking that risk.

        1. “Having sexual relations with people is risky.”

          Well, having sexual relations with people you don’t know well when you choose not to take the readily available steps to protect yourself is risky.

        2. Pretty sure someone picking up a relative stranger and deciding to have their baby based solely on the fact that they claimed to be a fighter pilot is already passing garbage genes on to their children.

          But seriously though, I’d be surprised if there isn’t already a precedent for this based on someone lying when donating at a sperm bank

    3. I think if you engage in fraud about your identity, you should have to pay up.

      If you lied about being a fighter pilot in order to solicit a donation from someone because you are a patriot serving your country, we would recognize this as fraud.

      What exactly is the reason that we should tolerate people lying to other people to extract something of value from them?

      There should be a remedy in both cases.

      1. “If you lied about being a fighter pilot in order to solicit a donation from someone because you are a patriot serving your country, we would recognize this as fraud.”

        The Stolen Valor case in 2012 says such a statement has 1A protection.

        1. All three opinions in U.S. v. Alvarez — the Kennedy plurality, the Breyer concurrence in the judgment, and the dissent — agree that congress can, and since has constitutionally criminalized lying about military honors for financial gain. Alvarez arose from a lie that neither caused nor was intended to cause financial harm, but there was unanimity on the power to punish fraud of the sort you describe.

      2. Comparing sex to monetary means won’t get you very far on either side of the political spectrum

    4. Lie: “I’ve only slept with 2 people. I don’t know if I have an STD, because I haven’t been checked.”

      Truth: “I have actually slept with 50 people. I don’t know if I have an STD, because I haven’t been checked.”

      Isn’t it the case that you are exposing the other person to a significantly higher risk than they expected by this sort of lie?

      1. The number of STDs a person has would be covered by the “all other things being equal” clause of my hypothetical, but you could argue that the person had protected sex with 50 people, vs having unprotected sex with 2 people he knew to be HIV-positive. Now where is your higher risk?

    5. Lie: “I’m over 18”

      Does she get prosecuted?

      1. “Are you sober enough to consent”?

        “IIIIII’mmmm fiiiiine.”

      2. Not only does she not get prosecuted, even if you can prove deliberate age fraud, you don’t get to use that as a defense in the statutory rape case.

    6. “I promise I will do the dishes after”

  7. While I agree with the author (and the CA Court) that this is a problem that deserves justice, it seems to me that this should be fixed directly by the Legislature, not by courts and prosecutors twisting and perverting existing laws and standards.

    1. How do you know it isn’t the courts that have caused the problem in the first place? (I don’t know either, just asking a hypothetical.) Is it always the role of the legislature to reverse mistakes by the courts, or can the courts reverse their own mistakes?

      1. To answer your hypothetical, the courts certainly can fix their own mistakes. The Court, for example, created qualified immunity out of whole cloth and could (and should) fix that themselves.

        But I don’t see a court-created mistake anywhere in the history of this social problem. As you see it, what am I missing?

      2. Is it always the role of the legislature to reverse mistakes by the courts […]

        Yes. That’s the idea behind “checks and balances”. It is the duty and role of the Executive and Legislative branches to reverse mistakes made by the Judicial.

        Just like it is the duty and role of the Executive and Judicial branches to reverse mistakes by the Legislative.

        Just like it is the duty and role of the Judicial and Legislative branches to reverse mistakes by the Executive.

        This is middle-school level civics.

  8. Irina Manta showing some more evidence that womens’ “existential fear is having their hypergamous filters bypassed by a clever Beta male impersonating an Alpha, breeding with him, and thereby saddled for a lifetime of support with the child of his inferior seed.”

  9. What about the biggest lie in the world (or at least one of the top three)? And I thought we were trying to reduce prison populations.

    1. “What about the biggest lie in the world”

      I don’t think you can make a sexual consent obtained by fraud case over “we’re from the government and we’re here to help”.

  10. Does that mean the UK is going to start prosecuting transgenders who engage in relationship fraud or are they going to come up with some phony baloney excuse about how thats okay?

    1. Perhaps you’ve heard of the principle: “fool me once, shame on you; fool me twice, shame on me.”

      If you can’t tell the first time, you shouldn’t look to the government to save you.

    2. I don’t mean to alarm you dude, but if your buddy say “he didn’t know” when you confront him about his transwoman girlfriend/one-night-stand/whatever, he’s lying.

      What he actually means is “I don’t want you to think less of me for being okay with banging a transwoman, so I’m going to slander her name rather then be a man about my sexual interests and activities.”

  11. California is particularly bad about this. They recently decriminalized intentionally spreading HIV/AIDS from a felony to a misdemeanor. Absolutely absurd given the existence of the pozzer community.

  12. So if there is “rape by fraud” is this going to apply to women who lie about their physical appearance through wearing push up bras, make up, spanx, etc. What happens when you get a woman naked and realize that she is really fat and has small boobs? Will a man be able to sue because of that version of fraud?

    1. Well step 1 is that you have to convincingly argue that he wouldn’t have slept with her if he’d known.

      Few folks will get to step 2, where I suspect you’d fall into the “reasonable person” question, which will probably sink you.

  13. What I think would be funny would be if a woman lied about using contraception and was prosecuted for rape under Prof. Manta’s theory. The funny part would be reading Prof. Manta’s raving about how unjust that result was.

    1. Prof Manta wrote: “Canadian courts seem to agree with me on that particular point, though they continue to have their own struggles with the concept of sexual fraud; this includes the (in my eyes, problematic) failure to recognize the emotional, dignitary, and financial harms to men who became fathers after women lied about being on birth control.”

      The funny part would be [you] reading.

  14. Rape by Fraud always gives me concerns when it comes to common law or statutory interpretations of non-explicit statutes. I’m not saying it shouldn’t be illegal, I just want greater notice of what is and isn’t illegal. Falsely implying you have a vasectomy or are on birth control leading to a pregnancy is an extreme example that seems straight forward. But what about false promises of future marriage (the traditional crime of seduction)? What about false claims to be the member of a certain race or religion when they are not? What about claims to be a virgin when they are not? I don’t like the idea of this being decided case by case after someone has been found guilty for that action. It would be much simpler if the law actually defined what rape by fraud actually was.

    1. I agree and better yet to not conflate this kind of fraud with rape. Intuitively I think most of us recognize it’s a poor fit. Separating the this kind of fraud from rape addresses the concerns you raise, allowing case-by-case adjudication that doesn’t render a broad range of misrepresentations into one of the worst crimes we have long recognized as a society. This also allows for adjudication of misrepresentations that may be otherwise seemingly slight.

  15. Didn’t US courts rule that sperm is a gift and she can dig a condom out of the trash if she wants to?

    This would imply caveat coitus. If having sex is contingent on the things someone says, perhaps perform a background check?

    1. Tax evasion if you don’t file a gift tax return with the IRS.

  16. For civil fraud, plaintiffs generally have to establish that they reasonably relied on the defendants’ fraudulent statement. Is it reasonable to rely on someone’s claim that they are taking birth control or have had a vasectomy when you don’t know the person and there are readily available means you can take to protect yourself?

  17. Suppose someone claimed to be white but was actually mulatto, let’s say 1/16 black. Actionable? A reason for not making it actionable is that even though society doesn’t enforce racial discrimination rules in personal relationships, that doesn’t mean that it approves of strong racial preferences there, and has to use its full powers to help racists. If you want to be a racist in personal relationships, you can, but you do so at your own risk. You don’t even get a tax deduction.

    Traditionally, society has disapproved of sex outside of marriage. Although many states decriminalized it in the late 20th century and court decisions have largely dealt with the rest, the fact that society doesn’t actively prevent it doesn’t necessarily mean it has to use its full powers to help people doing it. It can take the position that those who do it do so at their own risk.

  18. There is a second situation. As a court in a conservative state once put it, “the law of the child is not the law of the market.” Once a child is born into the world, the parents have a responsibility to it. They cannot use principles of market-style contract law to get out of that responsibility. Concepts of consent relevant to market-style contracts and tors have no relevance here. It simply doesn’t matter whether either parent wanted a child or not.

  19. I agree with this result, and mostly with the reverse case “she lied about being on the pill” or even impregnated themselves after the man threw the condom in the trash (though in those cases I’d say he was not “raped” and she is entitled to keep the child but must relieve him of liability to support it unless he chooses to claim paternity).

    And it’s interesting that you mention the precedent of having sex without informing partner of an STD. That deserves to be a felony. California recently reduced it to a misdemeanor even if it’s AIDS, and I’m astounded that no loud reactions have followed. (Not to mention, if legislators really believe that AIDS is no longer likely to kill, then why haven’t they re-legalized bath houses?)

    But outside of the above cases, I am very skeptical of the more general idea that lying to get someone to get them to have sex with you is rape. The extreme law of this type is in Israel, where men have been convicted of rape because they lied to the woman about their nationality or religion. It’s outrageous for that to be actionable at all.

Please to post comments